465 Responses

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Disabling the public URL that provides access to a file certainly meets this test.

Fair point, I had believed it was takedown or nothing (note to self - reread the DMCA) but negated by Graeme's comment. If access to the file was not completely removed, then the file was still available and still infringing. Even more so in your scenario of deduping.

The indictment clearly claims (para 22) that MU did de-dupe (using MD5 hashes). It goes on to say that they demonstrated the ability to remove underlying content w.r.t. terrorist and child-porn material. Yet they never did this for DMCA complaints. It is also claimed that they misled copyright holders over this in “negotiations” over their ‘Abuse Tool’.

Terrorist related content and child porn are presumably explicitly illegal. Copyright material on the other hand is not. I may have a legitimate right to hold the content, and choose to use MegaUpload to store it.

The indictment clearly claims (para 22) that MU did de-dupe (using MD5 hashes). It goes on to say that they demonstrated the ability to remove underlying content w.r.t. terrorist and child-porn material. Yet they never did this for DMCA complaints. It is also claimed that they misled copyright holders over this in “negotiations” over their ‘Abuse Tool’.

Good god, you’re quite right. Mea culpa, I missed that.

Edit: However, the MD5 hash will be different if even a bit is different, so this will only work for absolutely identical files

So, apologies to Dylan, they did dedupe, but that won't stop multiple copies of essentially the same file being available on the server.

So the multiple links thing all seems to stem from the de-duplication. Which I think is bullshit because MegaUpload can't know the legitimacy of any given copy. While User 1 may sharing a file and having it linked to from various places, User 2 may have a legitimate reason to have that file.

While it's not strictly legal I know plenty of people who work in the TV/Film industry who have pirated copies of work they've contributed to for their show reels etc.

Again if that were a requirement then I'm pretty sure YouTube were frequently not in compliance as duplicate videos are often uploaded by multiple users on YouTube.

You click "upload" and when upload is finished you are provided with *one* link for that file.

(In the old days - but not in the last 3(?) years - they would provide, at the same time, a "kill" link, activation of which would deactivate the upload link (ie send to megaupload.com/ "this file no longer exists").)

I like the argument that one of the copies might be legitimately held, but could also imagine simple mechanisms to re-assert your right to a file. I have no idea where the DMCA falls on such questions, and expect a lot of lawyers' time to be spent here.

The DMCA requires that the content be removed on notification of infringement, not that a link to the content be removed.

The DMCA requires that content providers "remove, or disable access to, the material that is claimed to be infringing". A sensible law, since it can be difficult to quickly remove all copies of a file from a internet service.

This is what intrigues me. Does anyone really believe YouTube management has no idea it's hosting potentially infringing content until explicitly advised by the owners?

Which is where I thought Graeme’s “these are drugs” example upthread was a lithe bit off.

I actually missed that comment...

So, when someone says “those are drugs”, the police should wait until after trial before seizing the wads of cash when they raid a drug house? And the drug-sellers should be able to continue selling their drugs until tests are back and confirmed by a court that those were indeed illegal drugs?

This is a very tricky one. If MegaUpload were a site that just straight-up stored, indexed and offered direct downloads of infringing content then I can see this analogy being somewhat more reasonable.

But it's not, it is more like a self-storage service. If one person was storing drugs in their unit would we expect (and accept) that police shut down the entire facility?

We welcome any former MegaUpload users who want to legitimately store, access, and share their data on our cloud storage service. We caution new users to read our Terms of Service carefully and understand that MediaFire takes violations of our Terms of Service very seriously.

MediaFire offers a free, secure, and unlimited cloud storage service for users to upload and share data with their customers, colleagues, friends, and family. MediaFire’s Professional and Business plans offer uploaders additional functionality like company branding tools, analytics tools, and multi-seat employee accounts.

MediaFire’s premium services are based on a user’s ability to upload data and pay to distribute it. This storage and sharing model is similar to Akamai, Amazon S3, YouSendIt, etc. MediaFire has no caps or restrictions for downloading data and each upload is limited to a maximum size of 200MB for non-premium users.

To differentiate between copies of the same show/film/software you would have to review every file individually, and compare it with all other files. And you would have to do this using humans, which would have huge cost implications and probably make the operation barely profitable.

YouTube does automatically compare audio and video against a database of works whose owners have complained to YouTube. See YouTube vs Fair Use and Fun with YouTube's Audio Content ID System. I think they do this to make their media partners happy and not because they are legally required to. YouTube makes good money off content licensed from big media.

Yes, that might do it. But many of MU’s files would be zipped or rar files. Extracting the audio out would be difficult. MU could have done something similar, but didn’t

And it's not required of them.

With YouTube they then also present some options to the content owners, which including monetising the content (ie. You upload a video with Pussycat Dolls track on it, their label can get ad revenue from your video).

That's not really the sort of business model that MU was operating with.

In a strong bail application, Mr Dotcom’s lawyer Paul Davidson QC has said that the US government, including the FBI, have completely misunderstood the reality of Mr Dotcom’s business.

Mr Davidson told the court the business did not involve the illegal downloading of copyright films, television series or music.

He says Mr Dotcom is not a flight risk, although he has access to helicopters and private jets and has passports in at least three nationalities under different names ...

Mr Davidson has revealed that the day before the police launched a dawn raid last week, a police officer called at the Chrisco mansion to discuss security matters with one of Mr Dotcom’s security advisers. He said the officer carried with him a concealed camera disguised as a pen that he used to take photographs around the property, presumably to identify any potential escape routes.

Two helicopter loads of armed offender squad members landed in the mansion courtyard and when Mr Dotcom was confronted by them banging on doors he became frightened and fled to the safe room where the police found him.

If I run a photocopy shop and let people photocopy stuff unsupervised should I be liable for any copyright infringement my customers are committing using my service?

For that matter, should the company that manfactures the laptop I’m writing this on be liable if I use it to infringe copyright like the dirty foreign criminal I am? Hope so – just for the sheer shadeunfreude-y goodness of watching two divisions of Sony go on a litigation jihad against another. :)

And while I hate sticking up for purverors of over-priced Christmas hampers, I wonder if Chrisco are getting a little tetchy about what this case is doing to their Google search results. :)

just for the sheer shadeunfreude-y goodness of watching two divisions of Sony go on a litigation jihad against another. :)

We've been seeing that for a while with Sony building MP3 and video players that you have to break copyright to load up. I think it gets resolved around the board table rather than in court, especially if both divisions make money.

Just out of interest... to what extent does a New Zealand court have to consider access to a 'fair' trial in the destination country when considering an extradition request (witness the UK court that denied extratition to Jordan (?) of an alleged islamic extremist on these grounds).

Given the large amount of money flowing from the big corporations to elected officials for influence (see the SOPA discussions above), and the present witch hunt of internet pirates that appears to be going on in the USA - to what extent would a 'fair' trial be guaranteed with elected and/or politically appointed judges in the middle of a media circus?

We’ve been seeing that for a while with Sony building MP3 and video players that you have to break copyright to load up. I think it gets resolved around the board table rather than in court, especially if both divisions make money.

Universal sued Sony in 1983 for making Betamax recorders because they're mostly used for copyright infringement.